the person could not, in proceedings before a court, be compelled to answer the question or produce the document.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3) of the Criminal Code .

(2) However, paragraph 196(1)(b) or (c) applies if the only reason or reasons why the person could not be so compelled are one or more of the following:

(a)

answering the question or producing the document would tend to incriminate the person or to expose the person to a penalty;

(b)

the answer would be privileged from being disclosed, or the document would be privileged from being produced, in legal proceedings on the ground of ^* legal professional privilege;

(c)

the answer or document would, under a law of the Commonwealth, a State or a Territory relating to the law of evidence, be inadmissible in legal proceedings for a reason other than because:

(i)

the answer would be privileged from being disclosed; or

(ii)

the document would be privileged from being produced.

(3) To avoid doubt, the following are not reasons why a person cannot, in proceedings before a court, be compelled to answer a question or produce a document:

(a)

the person is contractually obliged not to disclose information, and answering the question or producing the document would disclose that information;

(b)

the person is obliged under a law of a foreign country not to disclose information, and answering the question or producing the document would disclose that information.